Cited by

ourt could not determine whether an identifiable underrepresentation is the result of systematic exclusion because the defendant did not provide information 5 STATE v. BROWN Decision of the Court that a specific group was systematically excluded), ¶25

intercourse with an adult male.” ¶22 “A trial court must suppress evidence seized pursuant to a warrant if a defendant proves, by a preponderance of the evidence, that the affiant knowingly, intentionally, or with reckless disregard for the truth made a false statement to obtain the warrant and that the false statement was necessary to a finding of probable cause.” ¶ 42, (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)), ¶ 20

“A declaration of mistrial is the most dramatic remedy for trial error and is appropriate only when justice will be thwarted if the current jury is allowed to consider the case.” ¶ 68, ¶ 20

¶33 ¶ 26, P.3d 509 (2012), to argue that due process concerns can sometimes be implicated “in the absence of state action” when “evidence lacking in foundation reaches the jury under circumstances that do not afford a

¶ 15, abrogated on other grounds by Ferrero, 229 Ariz. at 243 ¶ 20, 274 Ariz. at 513.

404(b); ¶ 69, (testimony about defendant’s stated plans to rob store on weekend of murders was not evidence of his conduct, and therefore not subject to Rule 404(b)), -48 ¶¶ 52-57, - 36 (2001) (applying Rule 404(b) to admission of defendant’s statements soliciting another person to commit a crime two years before the offense at issue).

State v. Nordstrom (Nordstrom I), -37 ¶¶ 1-4, -25 (2001).

¶ 56, see also United States v. Bowie, 232 F.3d 923, 927 (D.C.

Media coverage must be so “extensive or outrageous that it permeated the proceedings or created a ‘carnival-like’ atmosphere.” Cruz, , 181 P.3d at 204

¶40 Even if the comments by the prosecutor were improper, we would reverse only if Gallardo established “a ‘reasonable likelihood’ that the ‘misconduct could have affected the jury’s verdict.’” Newell, 212 Ariz. at 403 ¶ 67, 132 P.3d at 847 ( ¶ 25, ).

(noting that “[w]e will not speculate on appeal about ‘what might have been’ or ‘what could have happened’”), ¶ 25

¶20 “A sentence of death may not be imposed if the jury was not permitted to consider a lesser-included, non-capital offense and the evidence would have supported such a verdict.” ¶ 81, (citing Beck v. Alabama, 447 U.S. 625, 627 (1980)).

See Prion, 203 Ariz. at 160 ¶ 15, 52 P.3d at 192 (holding that photograph of defendant on cover of periodical did not trigger due process concerns because not the result of state action); State v. Nordstrom, 200 Ariz. 229, 241 ¶ 24, (holding that when “the media, rather than the State, allegedly tainted [the witness’s] identification of the defendant,” the “state action requirement of the Fourteenth Amendment [could not] be established,” making “due process analysis .

¶ 15 Finally, , does not compel a contrary conclusion.

¶ 81, (citing Beck v. Alabama, 447 U.S. 625, 627 (1980)).

see also McCall, 139 Ariz. at 155, 677 P.2d at 928 (“a witness’ previous inability to identify a defendant goes to the credibility of the witness, not the admissibility of subsequent identifications”).

Compare Andriano, 503, ¶¶ 21-26 , 546 (2007) (holding wife’s failed attempt to purchase life insurance policy on terminally ill husband’s life and her extramarital affairs were not necessary preliminaries to her eventual murder of husband); ¶ 56 , (commenting that defendant’s theft of gun used in murders and robberies in other case was example of acts that were necessary preliminaries to the crimes charged).

(defendant waived issue by failing to renew motion to sever count); , , State v. Mincey, 13